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conveyance of certain subjects, with procuratory and precept, had been executed in favour of a trustee, for behoof of creditors, and the trustee had actually entered into missives of sale of the superiority on which his constituent was enrolled, and which was one of the subjects of the trust, but the term of entry of the purchaser had not come when the truster's right to continue on the roll was objected to at a meeting of freeholders, who repelled the objection. When the case was brought into the Court of Session, the Judges were of opinion that the missives did not amount to an actual and present sale, and that, in the whole circumstances, the truster had not forfeited his qualification 1.

In the preceding case, an agreement to sell, entered into by trustees, was held not to be sufficient to deprive their constituent of his right to vote. In like manner, where there is no trust, but the proprietor has himself granted an obligation to sell, and the term of entry is not come, he does not forfeit his qualification. In a case where a proprietor had, in September, exposed his lands under articles of roup, stipulating that the entry should be at Martinmas, when the price should be payable, and the lands had been sold on these conditions, the Court found that he was entitled to have been enrolled on these lands in October previous to the term of entry, because, until the sale took effect, he was fiar of the estate 2.

Where a freeholder disposes of a part of the lands on which he is enrolled, but clearly retains enough to afford a freehold qualification, he is entitled to continue on the roll. This has been held both where he has obtained a new division of his valued rent, shewing that the land which he retains is of the requisite valuation 3, and where it is plain, from the great excess of the whole subject over the part alienated, that the valued rent or old extent of what is retained is not reduced

1 Lockhart v. Wingate, 19th February 1819; Fac.

2 Don v. Cathcart and Oswald, 2d March 1813; Fac.

3 Macleod v. Gordon, 17th January 1766; Wight, p. 284.

below the legal standard by the operation'. Neither do exchanges of small portions of ground between conterminous proprietors, for the purpose of straighting marches, constitute an alteration of circumstances, as it is presumed that each proprietor receives an equivalent for what he gives away 2.

A person who has parted with a small part of his valuation, clearly retaining enough to give a vote, is not liable to be struck off the roll for refusing to take the trust-oath, if he assigns this circumstance as his reason for the refusal 3.

When a person has been enrolled on the valuation, ascertained by a decree of division, which has afterwards been reduced as erroneous, he is liable to be immediately struck off the roll, if it has appeared in the reduction that his lands, if duly rated, would not have had the requisite amount of valuation. If, on the contrary, it should appear that his estate has been undervalued, the question is considerably different, and has not yet received the decision of the Court 5. On the one hand, the lands, after the reduction, certainly have no separate valuation; on the other, the proprietor is actually enrolled on lands which truly are capable, by a division of the cumulo, of affording a qualification; the error is probably attributable to the commissioners; and when his claim was made, he had no reason to doubt that an accurate division had been made.

1 See this subject treated of in relation to Valued Rent, p. 138; and in relation to Old Extent, p. 108.

2 Wight, p. 286.

3 Gordon v. Heron, 25th February 1803; Fac. Supra, p. 172,

Hope Weir v. Bruce, 14th February 1771; Fac.

5 See Wight, p. 287.

SECTION 8.

Of the Jurisdiction of the Court of Session in regard to Freehold Qualifications.

Previous to the date of the act 1681, there is no reason to suppose that the Court of Session exercised any jurisdiction in regulating freehold qualifications. Where disputes occurred in elections of commissioners, they seem to have been made the subject of discussion in committees of Parliament, whose reports were afterwards considered by the Parliament itself. The act 1681 was the first which directed a roll 'for election,' consisting of the names of the fiars, liferenters ' and husbands,' who had right to vote in the election of a commissioner to Parliament, to be made up. Any roll previous to the date of this statute, which might be used at the head courts, would comprehend not only the freeholders qualified to vote in the choice of a commissioner, but likewise all those even of lesser property who owed suit at these courts. Hence, previous to that statute, no tribunal would have any opportunity of exercising jurisdiction in preserving the purity of a roll specially intended for election purposes; but each question in an election of a commissioner would probably receive the determination of Parliament as it occurred. When, however, the act 1681 introduced the election roll, it was provided by that statute, that, in case objections (i. e. objec'tions to the qualification of those enrolled) be made when a 'Parliament or convention is not called, a particular diet 'shall be appointed by the meeting, and intimate to the par'ties contraverting, to attend the Lords of Session for their 'determination, who shall determine the same at the said 'diet summarily, according to law, upon supplication, with' out farther citation.' A jurisdiction was thus, probably for 1 See Mr Thomson's acts, vol. viii. p. 216, et seq.

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the first time, conferred on the Court of Session in election questions; and this jurisdiction was to be exercised only in the particular circumstances and manner mentioned in the act. The usual form of application under this statute appears to have been by summary complaint. It appears, however, to have been held immediately before the date of the act 16th Geo. II, that a common law process of declarator might also be brought in the Court of Session, for declaring the title of any one to be enrolled; and there is also an instance of a reduction of certain enrolments having been brought, on the ground that the meeting was unlawful, as having been held on a wrong day, and by persons not on the roll 3.

No farther statutory enactment appears on the subject till the act 16th Geo. II. c. 11, was passed. By that statute1, a right of summary complaint to the Court of Session in relation to enrolments, whether at a Michaelmas or clection meeting, was given, without any distinction as to whether a parliament had been called at the time or not, provided the complaint was brought within four months of the wrong complained of; and it was declared that if an enrolment was not challenged within that time, the freeholder should continue on the roll till an alteration of his circumstances took place.

Questions, however, connected with enrolments, afterwards occurred, to which questions it was argued, that the remedy

1

1 See Elchies's Decisions, voce Memb. Parl. previous to the year 1743, the date of 16th Geo II.

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2 Lord Elchies, in reporting a case decided in 1741, mentions, that, in 'declarators founded on the common law, one could not declare his right to be enrolled without calling all freeholders on the roll, because they all 'have interest,' thereby taking the competency of such processes for granted (Case of Sutherlandshire, 17th February 1741, Memb. of Parl No. 7.); and, on referring to his notes, vol. ii. p. 259, it will be seen that this opinion was not confined to himself.

3 Elchies, voce Memb. Parl. No. 6.

4 Section 4.

afforded by this act did not apply. Thus, in a case in which one of only two freeholders attending a Michaelmas head court of Kinross-shire acted as preses, and thought proper to direct the name of an absent freeholder to be placed after another name, before which it previously stood, the freeholder thus postponed, presented a complaint to the Court of Session, praying to be restored to his former place on the roll. It was objected that that process was not applicable, under the statute, to such a case. The injured party then brought an action of declarator, to have it found that he was entitled to occupy his former place on the roll. It does not appear that any objection was stated to the competency of this action, which was taken up along with the complaint, and the party obtained decree, restoring him to his former place 1.

Other situations afterwards occurred, in which the remedy of common law processes was attempted, and in which the title of freeholders to insist in such actions was the subject of much discussion. In judging of the merits of a qualification, the freeholders, in general, cannot go beyond the claimant's charter and sasine, and the ex facie evidence of his valuation; and the Court, in considering a complaint against an enrolment, are subjected to a similar limitation. Hence if the defect is more deeply rooted, the question occurs, whether the freeholders have a remedy at common law? This question arose in regard to the right of the freeholders to challenge at common law decrees of division of valuations. There are certain objections which cannot competently be urged in a summary complaint, but must be brought forward in a regular process of reduction, which is of course competent to any person who has a pecuniary interest in the valuation arising from those various patrimonial rights which depend on valued rent, such as the payment of cess, and the division of commonties. But it was considered doubtful whe1 Rankine v. Ramsay, 23d January 1767

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